228 U.S.

312
33 S.Ct. 521
57 L.Ed. 849

JOSEPHINE P. McGOWAN, Executrix of Jonas H. McGowan,

Deceased, and Elijah V. Brookshire,
v.
EMILY E. PARISH, Executrix of Joseph W. Parish, Deceased.
No. ___.
Sumbitted January 13, 1913.
Decided April 14, 1913.

Messrs. Nathaniel Wilson and J. J. Darlington for petitioners.

Messrs. Holmes Conrad and Leigh Robinson opposed.
Mr. Chief Justice White delivered the opinion of the court:

In a controversy with the United States, the executrix of Joseph W. Parish

ultimately recovered a judgment for a large sum of money. United States ex rel.
Parish v. MacVeagh, 214 U. S. 124, 53 L. ed. 936, 29 Sup. Ct. Rep. 556.
Claiming to be entitled to a lien or liens upon the proceeds of the claim, and to
be the equitable owners of one tenth of the amount awarded, because of
services rendered as attorneys at law, under express contracts made with Joseph
W. Parish, a suit in equity was commenced in the supreme court of the District
of Columbia, by Jonas H. McGowan and Elijah V. Brookshire, against the
executrix of Parish and the then Secretary of the Treasury and the Treasurer of
the United States, to enforce said alleged lien or liens. A restraining order
issued, but before answer an interlocutory decree was entered by consent of the
defendant executrix, by which the restraining order was dissolved and $41,000
of the sum owing by the United States to the Parish estate was collected and
deposited with a trustee 'to the credit of this cause, and subject to the further
order of this court herein, and subject to the determination by this court in this
cause whether any amount, and if so, what amount, is justly due the
complainants, or either of them, for professional services rendered by them, or
either of them, for or in respect of the matters described in the bill of complaint.'
The case thereafter proceeded solely against the executrix of Parish. Soon

afterwards McGowan died and his executrix was substituted. The defendant
executrix answered, and the objections therein raised to the case made by the
plaintiff were thus summarized by the judge before whom the case was
ultimately heard:
2

'(1) That the plaintiffs' claims, if any, are barred by their failure to have the
same passed and approved by the probate court within the time limited by the
statute.

'(2) That the lien asserted by the plaintiffs is in violation of the Revised
Statutes, 3477, U. S. Comp. Stat. 1901, p. 2320.

'(3) That even taking the contract of McGowan as it read, he had not fulfilled its
condition and is therefore entitled to nothing.

'(4) That the plaintiffs totally abandoned the prosecution of the claim, and
voluntarily relinquished all rights they may have had under their contracts.

'(5) That in any view of the case, the plaintiffs are entitled to nothing more than
the reasonable value of their services.'

The section of the Revised Statutes referred to is in the margin.

All transfers and assignments made of any claim upon the United States, or of
any part or share thereof, or interest therein, whether absolute or conditional,
and whatever may be the consideration therefor, and all powers of attorney,
orders, or other authorities for receiving payment of any such claim, or of any
part or share thereof, shall be absolutely null and void, unless they are freely
made and executed in the presence of at least two attesting witnesses, after the
allowance of such a claim, the ascertainment of the amount due, and the issuing
of a warrant for the payment thereof. Such transfers, assignments, and powers
of attorney, must recite the warrant for payment, and must be acknowledged by
the person making them, before an officer having authority to take
acknowledgments of deeds, and shall be certified by the officer; and it must
appear by the certificate that the officer, at the time of the acknowledgment,
read and fully explained the transfer, assignment, or warrant of attorney to the
person acknowledging the same.' The trial judge disposed of the case in an
elaborate opinion. Considering whether the lien asserted by the plaintiff was in
conflict with Rev. Stat. 3477, it was held that all question on that subject had
been waived by the consent to the interlocutory decree, which reserved only the
question of indebtedness and the amount thereof. The case was deemed to be

analogous to that presented in Price v. Forrest, 173 U. S. 410, 423, 424, 43 L.

ed. 749, 753, 754, 19 Sup. Ct. Rep. 434, where the scope and effect of Rev.
Stat. 3477, was considered; and it was in effect decided that the statute would
not be contravened by adjudicating upon the alleged contract rights of the
parties in respect to the fund on deposit. On appeal, the court of appeals
reversed the decree of the supreme court, and among other things explicitly
decided that the contracts relied upon were repugnant to 3477, and were
absolutely void. It was, however, also held that, putting aside the question of
contract lien, and assuming that there was an agreement to pay a contingent fee,
no lien operative upon the fund existed for such fee, because the judgment for
the claim against the United States had been recovered by other attorneys
acting independently of the complainants. Thus reaching the conclusion that, as
the result of the provisions of the statute, there could be no lien, and there was,
moreover, none, viewing the case independently of the statute, and hence, no
valid ground of equity jurisdiction, it was substantially decided that from the
point of view of the alleged contract and the right to the fund asserted to arise
from it, the court was without power to interfere. Considering the interlocutory
decree and the agreement by which it was rendered, it was in effect determined
that it must be treated as having been entered subject to the right of the
defendant to challenge, in virtue of the statute, the existence of the alleged lien,
and therefore as the result of the construction given to the statute at the instance
of the defendant the interlocutory decree could have no greater effect to
establish the lien asserted than did the contract itself. Although it was thus
concluded that as, by virtue of the statute invoked by the defendant, there was
no lien and no jurisdiction, it was nevertheless decided that, in view of the
recitals in the answer, that the agreement leading up to the interlocutory decree
was equivalent to the consent by the parties that the court decide the case, not
upon a question of contract or the right to a lien arising from it, since that was
disposed of by the statute, but by way of quantum meruit. Coming to examine
that question, it was held that by inaction or neglect the plaintiffs had lost their
rights, if any, to recover on a quantum meruit, as the result of the inaction or
neglect, as other attorneys had been employed and had recovered the judgment
upon which the money had been collected. 40 Wash. L. Rep. 726. A decree of
reversal was entered and the cause was remanded, with directions to dismiss
the bill. Application was then made to the court of appeals for the allowance of
an appeal to this court 'upon the ground that the construction of a law of the
United States is drawn in question by the defendant.' The appeal was refused,
the court in a memorandum opinion, after reciting the fact of the making of the
application, saying:
9

'The defendant relied upon 3477, Rev. Stat., as prohibiting the lien claimed
by the plaintiffs, and on that rests the contention that the construction of a law

of the United States is drawn in question.

10

'The right to appeal is one of substance, and not of mere form. The question of
the validity of the lien is one that had been settled by the Supreme Court of the
United States in construing 3477, and was no longer an open one. The
construction of the act could not, therefore, be drawn in question. Kansas v.
Bradley, 26 Fed. 289; Harris v. Rosenberger, 13 L.R.A.(N.S.) 762, 76 C. C. A.
225, 145 Fed. 449-452.

11

'We are constrained to refuse the allowance of the appeal.' This application was
then made. The section of the Judicial Code relied upon by the applicants reads
as follows:

12

'Sec. 250. Any final judgment or decree of the court of appeals of the District of
Columbia may be re-examined and affirmed, reversed, or modified by the
Supreme Court of the United States, upon writ of error or appeal, in the
following cases: . . .

13

'Sixth. In cases in which the construction of any law of the United States is
drawn in question by the defendant.' [36 Stat. at L. 1159, chap. 231, U. S.
Comp. Stat. Supp. 1911, p. 231.]

14

This section came under consideration in American Secur. & T. Co. v. District
of Columbia, 224 U. S. 491, 56 L. ed. 856, 32 Sup. Ct. Rep. 553, where it was
held that the words 'any law of the United States' embraced only laws of the
United States of general operation, and did not therefore include laws of the
United States local in their application to the District of Columbia. It follows
that, in the nature of things, there exists a large class of cases which involve the
construction of a law of the United States in one sense, although not the
construction of such law in the sense of the statute, the line of distinction being
whether the law whose construction was involved was of general application or
merely local in character. The duty in every case, therefore, arises where the
right to appeal under the section is invoked, to ascertain whether the case
substantially involves the construction of a law in the appealable sense. The
fact that the court below, in the nature of things, must be constantly called upon
to apply and enforce laws of the United States, local in character, admonishes
us that when called upon to determine whether the right to an appeal exists, to
be more than usually circumspect to see to it that the authority to review,
conferred in one class of cases, be not permitted to embrace the other and large
class of cases to which it does not extend.

15

Undoubtedly Rev. Stat., 3477, is a law of the United States of general

application and its construction was drawn in question by the defendant, and
was considered and passed upon, and hence we think the right to appeal
existed. Indeed, the court below did not rest its refusal to allow the appeal upon
the theory that the construction of a statute of the United States, of general
operation, had not been called in question by the defendant, but upon the
conception that the questions concerning the construction of the statute, which
were raised, had been so explicitly foreclosed as to exclude the possibility of
allowing an appeal upon the theory that the case substantially involved a
controversy concerning the construction of the statute. But in view of the
difference between the trial court and the court below as to the operation and
effect of the interlocutory consent decree, of the question which necessarily
arose as to the effect of the statute upon the rights of the parties to make the
agreement, irrespective of its operation upon the United States, and the
application of the statute to the idiosyncrasies of the case as presented, we
cannot say that the case arising on the record is of so frivolous a character as to
deprive of the right of appeal which otherwise is obviously conferred by the
statute.

16

The penalty of the bond to be given to operate as a supersedeas will be the sum
of $3,000.

17

Appeal allowed.